We would like to remind our readers of the upcoming deadline for the FBAR form for the reporting of foreign bank and other financial accounts. This year, 2017, is the first year that the deadline for the FBAR form, the Report of Foreign Bank and Financial Accounts (FinCEN Form 114), is the same as the deadline for submission of income tax returns (IRS Form 1040), for tax year 2016. The extended deadline is October 15, 2017.

The FBAR must be filed by taxpayers who had beneficial ownership of, or signature or other authority over, foreign financial accounts, including bank and securities accounts, if the aggregate value of such accounts exceeded $10,000 at any time during 2016. The FBAR also applies to foreign insurance policies, annuity policies, retirement plans and other financial products. Recent authority also extends the FBAR to on-line gambling/gaming accounts. Many of the foreign assets subject to the FBAR are also reportable on IRS Form 8938. However, even if you filed Form 8938, you must still file the FBAR.

We can assist with questions such as: Are you subject to FBAR reporting? Are your foreign assets reportable on the FBAR form? What if you have not filed the FBAR forms in past years? Please contact us to schedule a consultation.

The IRS maintains an Offshore Voluntary Disclosure Program (OVDP) whereby eligible taxpayers can self-declare previously undeclared foreign assets in return for lower penalties. The more recent “Streamlined” procedures allow for even lower or no penalties – provided that the taxpayer’s past non-compliance was “non-willful”. In this webinar, you’ll learn about the considerations around the OVDP and the recent Streamlined Procedures. Upon completion of the course, you’ll be able to:

Explain the difference between the OVDP and the Streamlined Procedures in reporting foreign assets to the IRS

The value of Bitcoin has surged 125% in 2017 alone. In addition to its value ascent, it has also gained in legitimacy. While it was once the currency of choice on the illicit Silk Road “dark web”, shut down by the U.S. Department of Justice in 2013, Bitcoin is now accepted for payments by Amazon.com and other mainstream businesses. Whether you’ve weathered the Bitcoin roller coaster or invested recently, you must ensure IRS compliance for Bitcoin.

The IRS has taken an interest in Bitcoin for various reasons. First, Bitcoin is largely unmonitored and stands apart from the traditional structure of U.S. banking with 1099 forms and regular reporting. There is a huge mass of Bitcoin value that is relatively unknown to the IRS, and gains in value are essentially hidden from the IRS, and the IRS doesn’t like that. In addition, Bitcoin has a large potential for tax non-compliance, both because its very nature is anonymous, and because Bitcoin holdings give rise to significant IRS reporting (the “FBAR” form, IRS Form 8938, IRS Form 8949, capital gains taxes, etc.) and many Bitcoin owners don’t heed (or even know) the reporting requirements.

In November 2016, the IRS obtained a federal court authorization to issue a “John Doe” summons to Coinbase, Inc., a web-based global digital currency wallet and platform. The IRS has in the past successfully used the “John Doe” summons to obtain information from financial institutions (e.g., UBS, HSBC and Cayman Islands banks) for a broad class of U.S. taxpayers who are not individually named but whom the IRS has reason to believe may have utilized the financial institution to improperly evade tax. The John Doe summons upon Coinbase seeks records from 2013 through 2015 for any Coinbase user with a US address, telephone number, e-mail domain, etc., and all records related to disbursement of funds to any user. A recently filed Affidavit by an IRS agent in the Coinbase enforcement litigation revealed that in 2015, only 802 taxpayers revealed Bitcoin information to the IRS on Form 8949, which is the form applicable to capital gains and losses. Other virtual currency platforms, such as Localbitcoins, Kraken and ItBit may receive similar summonses for transactions with Bitcoins and other virtual currencies like Ethereum and Litecoin.

Bitcoin’s anonymity feeds its non-compliance, and there are many opportunities to run afoul of tax law and IRS requirements, intentionally or inadvertently. One issue is the failure to report income with respect to Bitcoin. In 2014, the IRS issued Notice 2014-21 describing how various income recognition and other US tax principles apply to virtual currency transactions. In that Notice, the IRS clarified that virtual currencies are “property” subject to income tax, capital gains tax, etc. This means that if Bitcoin is sold for a profit, that profit is income and is subject to capital gains tax. The income is reportable on IRS Form 8949 which is then attached to Schedule D of Form 1040. If you exchange your Bitcoin for goods or services, that too is a taxable event, as the IRS considers you to have earned income on the value of the good or service, less your cost basis in the Bitcoin (i.e., your Bitcoin purchase price).

If you are audited by the IRS regarding Bitcoin, you may have to show multiple cost bases for multiple transactions. Proper record keeping with respect to Bitcoin is essential. The IRS could take the position that your cost basis in your Bitcoin is zero, and you would pay tax on the full value of the Bitcoin on the date of the transaction, unless you can provide records of your purchases of Bitcoin.

Clearly, the IRS’ increased interest in Bitcoin necessitates proper compliance with respect to Bitcoin assets. The IRS offers opportunities to come into compliance before the IRS obtains information about unreported assets (virtual or actual) and income, including via a pre-emptive voluntary disclosure (offshore or domestic) of digital currency income and accounts. A voluntary disclosure also provides the opportunity to calculate, with a reasonable degree of certainty, the total cost of resolving open tax issues, along with peace of mind and finality.

Please contact us to discuss IRS compliance for Bitcoin assets, along with other tax issues.

The IRS has obtained a vast amount of information from sources that include foreign banks, the Panama Papers and the Foreign Account Tax Compliance Act (FATCA). Additional sources include Tax Information Exchange Agreements (TIEs), foreign bankers and other people’s voluntary disclosures. According to the IRS, there are hundreds of US taxpayers subject to criminal tax charges in relation to their offshore accounts, and thousands more subject to large civil fines and penalties.

There are also opportunities to come forward before the IRS gets a taxpayer’s name, in return for lower penalties. If a taxpayer willfully hid foreign assets and income (for instance, a taxpayer who set up an account in a tax haven country like Switzerland or Panama, without any legitimate ties to that country, or a taxpayer who utilized offshore entities like foreign trusts, corporations or foundations, or diverted business income away from the IRS), then such a taxpayer should apply to the IRS Offshore Voluntary Disclosure Program (OVDP) in return for lower penalties and no criminal prosecution.

On the other hand, if a taxpayer was non-willful (for example, a U.S. taxpayer who inherited a foreign account from a foreign relative, or a recent immigrant who was unaware that accounts “back home” become reportable to the IRS), then such a taxpayer may be eligible to make a Streamlined disclosure for much lower penalties, or in the case of US taxpayers who reside abroad, zero penalties.

The two most significant programs aiding taxpayers with unreported foreign assets are the Offshore Voluntary Disclosure Program (OVDP) and the Streamlined Procedures for domestic (SDOP) and foreign (SFOP) residents. Taxpayers may benefit from substantially reduced or no penalties for failure to report offshore accounts and assets. However, taxpayers and their advisors must be aware of the risks in each of the programs. The penalties imposed upon taxpayers who willfully fail to disclose offshore assets are extremely punitive.

Taxpayers and their advisers must evaluate whether a disclosure program will help a taxpayer avoid increased IRS penalties, and whether the taxpayer is eligible to enter one of the programs. Eligibility is very fact-specific. If eligible, counsel must guide the taxpayer in meeting the very specific information requirements of the disclosure program. The OVDP, SDOP and SFOP may end at any time without notice, at which point the taxpayer may face the full measure of penalties (including criminal consequences).

The Webinar panel will provide taxpayers, legal counsel and tax advisers with the tools necessary to navigate the new rules regarding the FBAR and offshore voluntary disclosure programs.

IRS Form 8938, introduced only a few years ago, required for the reporting of foreign financial assets, including financial accounts and foreign assets not held in financial accounts;

Reporting requirements for foreign trusts, foreign foundations and foreign corporations, and how to come into compliance if you haven’t filed the relevant forms (e.g., IRS Form 3520 for offshore trusts, Form 5471 for foreign corporations);

Are you prepared for the possibility that your assets – – your home, your savings, your business – – could be taken from you by litigants, creditors, the government, potentially even your spouse? That could happen if you are a business owner, property owner, guarantor or a perceived “deep pocket”. If you are a potential target of a lawsuit or other legal threat, you owe it to yourself and your family to consider asset protection.

Asset protection is the safeguarding of wealth and assets from attack by future, unsecured creditors. The assets and wealth that we can protect is a broad class: your home, bank and investment accounts, business interests, professional practices, real estate including your home and investment properties, commercial properties, jewelry, cars, boats, art and other personal property, intellectual property and virtually anything else of value that you may wish to preserve for yourself and your family.

People sometimes have the misconception that in order to engage an asset protection attorney, they need to have significant wealth. In fact, weprotects the assets of many different people, of diverse backgrounds and all levels of affluence. Our asset protection clients have ranged from young entrepreneurs seeking to protect their assets from the risks of their next business ventures, to retirees seeking to preserve their assets for their children and grandchildren, people seeking to protect their home from mounting medical bills, celebrities and mega-wealthy individuals with real estate holdings around the world. All types of people, with all types of assets, need asset protection.

Domestic asset protection can be totally effective if implemented by individuals with no current claims against them. Domestic asset protection is also usually used to protect real estate. As an added bonus, some structures that we use for asset protection, like the family limited partnership, also offer excellent tax minimization and estate planning benefits.

The problem: the theft is merely alleged, not proven. If the law is passed, employees with grievances against their employers – – irrespective of whether the grievances are valid or frivolous, retaliatory or vexatious, and before any finding of wrongdoing – – will be able to tie up the employers financially. This would be crippling for the employers and could lead to significant cash flow and credit issues. Such consequences could happen on the basis of a mere claim against the employer, however flimsy or unfounded. As the New York Times stated, the proposed law “would essentially enable employees who accuse an employer of wage theft to have a lien placed on the employer’s assets while the outcome is being determined.”

Existing law is hesitant to allow for such crippling consequences before a court or government agency finds any wrongdoing. Such a “pre-judgment remedy” is very rare. Pre-judgment remedies are allowed in limited circumstances, such as when a litigant can demonstrate that his adversary may flee the court’s jurisdiction and take assets with him.

In the U.S. Supreme Court case Grupo Mexicano v. Alliance Bond Fund (1999), the highest Court held that the law does not allow for a preliminary injunction preventing defendants from disposing of their assets pending a court deciding the creditor’s claim. For a court to grant creditors such preliminary injunctions “could radically alter the balance between debtors’ and creditors’ rights,” the late Justice Scalia wrote, and “might induce creditors to engage in a race to the courthouse . . . which might prove financially fatal to the struggling debtor.” In other words, the creditor had to first obtain a judgment from the court in order to prevent the defendant from doing something with his assets. The proposed “sweat” law seems to run directly counter to the Grupo Mexicano opinion by the U.S. Supreme Court.

The New York Times article does point out that certain business owners have lost employment litigations and then have undertaken questionable actions, such as “selling off houses and businesses – sometimes for a nominal sum, and frequently to a relative – and declaring bankruptcy . . . to avoid paying back wages, overtime or damages, usually as a result of a court order.” However, the law already has remedies for such actions. For one thing, such sales to insiders, without fair market consideration, can be reversed by a court as a “fraudulent conveyance”. In addition, the Bankruptcy Code allows a bankruptcy trustee to void any such transfer within ten years of the bankruptcy filing. The NYT article also notes that when one business, say a restaurant, is sued and loses, that business then changes its name but carries on business as usual. However, the law also does allow for “successor liability” for the “new” business when the new business is substantially the same as the old.

Irrespective of whether the proposed “sweat” law is passed, the threats to business owners are clear and immediate. An entire industry of lawyers has arisen to bring litigations against business owners based on alleged labor and wage violations under the Fair Labor Standards Act (FLSA). Business owners and investors are personally liable for labor law violations, which means that even if the business is owned in an LLC or corporation, the owner’s personal assets are vulnerable.

The lesson is that business owners should protect their personal and business assets BEFORE a claim is filed. AFTER may soon be too late. Proper asset protection, in conjunction with compliance with labor and wage laws, is the best pre-emptive defense, and often discourages the predatory lawsuits in the first place. Proper asset protection strategies offer business owners peace of mind and provide the protection their assets need to withstand the inevitable attacks.

Please contact us with any questions or to schedule a consultation on how to protect assets from labor and wage claims.

In 2014, Credit Suisse pleaded guilty in U.S. federal court to facilitating tax fraud by Americans via secret bank accounts in Switzerland. This was among the largest guilty pleas ever by a foreign bank, and Credit Suisse agreed to pay $2.6 billion in fines to the U.S. and New York State. (Our previous report from 2014 is here, along with a Bloomberg Businessweek article that quoted Asher Rubinstein in 2014.) Now, Credit Suisse is again facing similar allegations, this time for the bank’s “Israel desk” facilitating tax fraud by Israeli-Americans.

The current accusations stem from the Department of Justice prosecution of Dan Horsky, who held joint U.S. and Israeli citizenship and kept millions of dollars in cash and stock accounts at unreported Credit Suisse accounts in Switzerland. Mr. Horsky pled guilty, cooperated with DOJ and provided information about Credit Suisse that could result in a new prosecution or punishment of Credit Suisse. Following the 2014 guilty plea, a new prosecution will likely have severely negative results for Credit Suisse and other U.S.-Israeli taxpayers with unreported secret bank accounts at Credit Suisse and other banks.

We have written extensively about non-compliant foreign accounts in Switzerland, Israel and other jurisdictions around the world. There is a limited opportunity to bring such accounts into U.S. tax compliance, but only if the IRS does not already know about the accounts. If Credit Suisse, as part of an investigation, settlement, fine or penalty, reveals the names of its account holders to DOJ, it would be too late for the account holders to make a pre-emptive disclosure in order to avoid prosecution, severe penalties and even jail. Banks have routinely disclosed the identities of their account holders in order to settle charges of facilitating tax fraud, including UBS, Credit Suisse and Bank Leumi.

If you have unreported foreign accounts, commonly known as secret bank accounts, contact us to discuss your options.

Annual tax season is upon us, and we remind readers of important tax reporting requirements that must be met with respect to foreign assets.

“Check the Box” on IRS Form 1040, Schedule B

If you had signature authority or a financial interest (e.g., ownership) in a foreign financial account (including a bank account, securities account, brokerage account, etc.) at any time during 2016, you must “check the box” on your IRS Form 1040, Schedule B, Part III, Line 7. If your foreign account(s) were valued at more than $10,000 in the aggregate, you must also “check the box” on line 7 regarding the FBAR form, FinCEN 114 (see item 5, below). This requirement is applicable to taxpayers who had beneficial ownership of, or signature authority or other authority over, such financial accounts in a foreign country. Even if you closed the accounts during 2016, you must still “check the box” if you maintained the accounts during any part of 2016. If you received a distribution from, or were the grantor of, or a transferor to, a foreign trust or foreign foundation, you must “check the box” on Line 8 and also file IRS Form 3520.

Report Foreign Income

In addition to “checking the box” on IRS Form 1040, Schedule B, U.S. taxpayers must report all income (including interest, capital gains, dividends and pension distributions) realized during 2016, on IRS Form 1040. If you held investments in foreign mutual funds or hedge funds, you may be required to file additional tax forms applicable to “PFICs” (Passive Foreign Investment Companies) for tax year 2016 (e.g., IRS Form 8621). If you received rental income from foreign real estate or realized gains from the sale of foreign real estate, you must declare it. You may be eligible to deduct real estate expenses and real estate taxes paid to a foreign tax authority. In many cases, if foreign income was taxed in a foreign country, you may be able to get a credit for foreign taxes paid. Even so, all foreign income should still be declared.

IRS Form 8938

IRS Form 8938, Statement of Specified Foreign Financial Assets, first introduced in 2012, is yet another IRS form to report foreign bank, brokerage accounts and other foreign financial assets (including interests in offshore trusts and corporations, bonds, foreign mutual funds, foreign annuity and insurance policies). IRS Form 8938 is due with your annual tax return (April 18, 2017, unless you obtain an extension).

If you had an interest in a foreign entity such as a foreign trust or foreign foundation, and/or during 2016 you received assets from the a foreign entity, then you may also be required to file IRS Forms 3520 and 3520A. Please contact us for a copy of our memorandum about this issue. If you had an interest in a foreign corporation, and the foreign corporation is deemed to be a “Controlled Foreign Corporation” (CFC), then IRS Form 5471 is also due. These forms are usually due with your income tax return (IRS Form 1040, due April 18, 2017).

The FBAR – due April 18, 2017

This year, 2017, is the first year that the deadline for the FBAR, Report of Foreign Bank and Financial Accounts (FinCEN Form 114), is the same as the deadline for submission of income tax returns (1040s), for calendar year 2016. The FBAR must be filed by taxpayers who had beneficial ownership of, or signature or other authority over, foreign financial accounts, including bank and securities accounts, if the aggregate value of such accounts exceeded $10,000 at any time during 2016. The FBAR also applies to foreign insurance policies, annuity policies, retirement plans and other financial products. Recent authority also extends the FBAR to on-line gambling/gaming accounts. If you participated in the IRS Offshore Voluntary Disclosure Program (OVDP), Streamlined procedures or submitted retroactive FBARs, you should ensure ongoing compliance by timely submitting the 2016 FBAR. If the accounts existed at any point during 2016, then the FBAR must be submitted by April 18, 2017. Note that the FBAR is now known as FinCEN Form 114, and must be filed electronically. This year, also for the first time, a taxpayer may obtain an automatic extension to file the FBAR. The extended due date is the same as one’s extended income tax deadline (October 15, 2017).

Strategic Concerns

If you have not yet filed an application for the OVDP or submitted a Streamlined application, or if your application is pending at the IRS, or you are undecided as to whether or not to make a disclosure, you may want to consider requesting an extension for your 2016 tax returns and FBAR.

You may request an extension for filing your income tax return by filing IRS Form 4868. Note that this is an extension to file the tax return, not pay tax due. You still need to pay your tax liability by April 18, 2017, while you have until October 15, 2017 to file your tax return and FBAR. This means that your voluntary disclosure strategy needs to be formulated prior to reporting to the Government the existence of foreign accounts via the FBAR, Form 8938, etc.

Conclusion

Please ensure that your offshore assets are tax compliant by adhering to the ongoing reporting and tax requirements. If you have any questions or would like our assistance in formulating a disclosure strategy or in preparing the 2016 FBAR, please feel free to contact us.